Citation Nr: 0319435
Decision Date: 08/07/03 Archive Date: 08/13/03
DOCKET NO. 93-19 226 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Los Angeles, California
THE ISSUE
Entitlement to an initial disability rating in excess of 10
percent for the service-connected back disability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Counsel
INTRODUCTION
The veteran had active service from November 1979 to
September 1982.
This case initially came to the Board of Veterans' Appeals
(Board) on appeal from a January 1999 decision of the RO that
granted service connection for a back disability, and
assigned a no percent evaluation under Diagnostic Code 5293,
effective in January 1997.
In October 1999, the RO increased the rating for the service-
connected back disability to 10 percent, effective from the
original date of claim in January 1997. The veteran
testified at a hearing at the RO before a Hearing Officer in
August 1999.
The Board remanded the case to the RO for due process and
procedural matters in May 2000. Thereafter, the veteran
also testified at a hearing at the RO before the undersigned
Veterans Law Judge in July 2000. In November 2000, the Board
remanded the case for additional development of the record.
In a March 2003 rating decision, the RO granted service
connection for residuals of excision of pilonidal cyst and
assigned a no percent rating under Diagnostic Code 7803,
effective in September 1990; a 10 percent rating effective in
April 1996; and a no percent rating effective in January
1997. The record reflects no Notice of Disagreement, to
date, with the initial staged ratings for the service-
connected disability, and that issue will not be addressed by
the Board at this time.
Other issues which were in appellate status at the time of
the Board's prior remands have been withdrawn by the veteran,
or have become the subject of an earlier Board decision.
FINDINGS OF FACT
1. Neither version of the regulations for rating
intervertebral disc syndrome is more advantageous to the
veteran.
2. The service-connected back disability is shown to be
productive of a disability picture that more nearly
approximates that of moderate limitation of motion of the
lumbar spine with complaints of pain, slight-to-moderate
limited and painful motion, minimal degenerative disc
disease, and functional impairment.
CONCLUSION OF LAW
The criteria for the assignment of a 20 percent rating, but
no higher, for the service-connected back disability are met.
38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R.
§§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a including Diagnostic
Codes 5010, 5292, 5295 (2002) and 5293 (effective prior to
and as of September 23, 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VA's Duty to Assist and Provide Notice
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).
This law redefines the obligations of VA with respect to the
duty to assist and includes an enhanced duty to notify a
claimant as to the information and evidence necessary to
substantiate a claim for VA benefits.
This law also eliminates the concept of a well-grounded claim
and supersedes the decision of the United States Court of
Appeals for Veterans Claims in Morton v. West, 12 Vet. App.
477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had
held that VA cannot assist in the development of a claim that
is not well grounded.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA, or filed before
the date of enactment and not yet final as of that date.
VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096,
2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App.
308 (1991).
To implement the provisions of the law, VA promulgated
regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001)
(codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)).
The implementing regulations are meant to define terms used
in the Act, and provide guidance for carrying out the
requirements of the Act.
The regulations, with the exception of development in the
case of attempts to reopen finally denied claims made after
August 21, 2001, are not meant to bestow any new rights. 66
Fed. Reg. 45,629 (Aug. 29, 2001).
Thus, the veteran is not prejudiced by the Board's initial
application of the regulations to her claim.
In this case the veteran's application appears to be
complete. She has been informed of the information necessary
to substantiate her claim via the Statement of the Case, the
Supplemental Statements of the Case, and the Board's earlier
remands. There does not appear to be any relevant evidence
that has not been associated with the claims folder.
During the course of adjudicating the claim, the veteran was
given additional time to obtain pertinent medical records.
These records have been associated with the claims folder.
The veteran has been informed of the VA's duty to assist
claimants for VA benefits, and has been notified of what she
should do and what VA would do to obtain additional evidence.
The record contains sufficient information to decide the
claim. This includes VA examinations performed to evaluate
the severity of the service-connected disability.
The records in the claims folder from the Social Security
Administration indicate that the veteran has been considered
to be disabled since June 1990, on the basis of disabilities
other than a back disorder. As such, it is the opinion of
the Board that medical evidence, if any, associated with that
file would be out-of-date and of minimal, if any, probative
value to the veteran's current claim for a higher initial
rating for her service-connected back disability.
The Board finds that all relevant evidence has been obtained
with regard to the veteran's claim.
Hence, no further assistance to the veteran is required to
fulfill VA's duty to assist her in the development of the
claim. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002).
II. Evaluation of the Service-Connected Back Disability
A. Factual Background
A careful review of service medical records shows that the
veteran was treated on several occasions for low back pain
and muscle strain.
An MRI scan of the veteran's lumbar spine in May 1994
revealed minimal posterior bulging of the L4-L5 disc. There
was also mild desiccation of the L4-L5 disc, consistent with
chronic mild degenerative disc disease.
X-rays taken of the veteran's lumbar spine in April 1997
revealed degenerative disc disease at L5-S1.
At a VA examination in September 1997, the veteran reported
that she had initially injured her back while carrying
sandbags in service. She re-injured her back in 1980 when
carrying a military patient. The veteran reported chronic
low back pain, as well as pain in multiple joints, and
complained of pain while walking up stairs, standing, or
sitting for prolonged periods.
Upon examination, the range of motion of the veteran's
lumbosacral spine was as follows: Forward flexion, 40
degrees; backward extension, 20 degrees; right and left
lateral flexion, 15 degrees; and right and left lateral
rotation, 5 degrees. The veteran reported mild to moderate
pain on range of motion examination. Visual inspection of
the spine was unremarkable. Paraspinous musculature was
intact; neither spasms nor trigger points were noted. There
was no tenderness. She was reported to be unable to heel or
toe walk due to obesity. Straight leg raising, bilaterally,
was negative. X-ray study of the lumbar spine was
interpreted as being negative with the exception of a
transitional vertebra. The diagnosis was that of mild
degenerative disc disease, lumbosacral spine with minimal
range of motion deficits and mild to moderate pain on range
of motion examination.
At a VA examination in December 1998, the veteran complained
of middle and lower back pain, and occasional right leg
numbness, and reported frequent exacerbations of her back
pain brought on by overexertion while performing housework,
such as vacuuming and laundry. She estimated that, twice
weekly, she would return to her bed and rest from 2 to 12
hours, and take medication for pain. She also reported
limited success with use of a TENS unit and noted that she
had enrolled in a pain clinic.
Examination revealed tenderness of the dorsal spine on
palpation, as well as tenderness of the lower lumbar spine.
The veteran sat and stood with care. She was able to walk
normally without any antalgia. The examiner noted,
parenthetically, that when the veteran explained that she had
a left ankle sprain, she limped briefly on her left foot.
There was marked tenderness to palpation at the left S1
joint; and Gaenslen's test was moderately positive,
indicating some left S1 pathology. No trigger points were
detected, but there were multiple tender points. Forward
flexion was well past 90 degrees without pain; dorsiflexion
was greater than 30 degrees before the veteran experienced
pain. There were no muscle spasms. Muscle strength in the
lower extremities was normal and knee and ankle jerks were 1
- 2 + and symmetric. The examiner commented that the
veteran's physical complaints appeared to be exaggerated.
X-rays revealed a lumbarized S1 vertebra with apparent
pseudarthrosis of the posterior aspect of the left S1-S2
vertebra with sclerotic margins, which had not been well
visualized on the prior examination and may explain the
veteran's decreased range of motion and low back pain. The
diagnosis was that of status-post low back trauma with
sequelae of lumbar spondylopathy, with full range of motion
and neither strength nor neurologic deficits associated.
The examiner added that the veteran's low back condition was
most consistent with chronic fibromyositis (primary
fibromyalgia), which may be initiated by relatively minor
trauma; and that there were no findings to explain the
veteran's contention that she required bed rest on several
occasions following overexertion. This history suggested
symptom overlay. The examiner also noted that the
lumbarization of the first sacral vertebra was likely
developmental; however, the pseudarthrosis raised the
possibility of a subtle and/or occult vertebral fracture. It
was the opinion of the examiner that it was more likely than
not that the veteran's reported in-service back trauma
initiated this condition.
The testimony of the veteran before an RO Hearing Officer in
August 1999 was to the effect that her back condition
affected her daily-namely, making it intolerable or uneasy
to ambulate every morning. The veteran testified that she
took medications to subside the pain, and that her ability to
move around became easier as the day progressed.
VA outpatient notes dated in 1999 reflect treatment for
complaints of pain involving multiple joints, with a notation
of sciatic type pain. The VA progress notes dated in June
2000 reflect an exacerbation of lumbar radular symptoms with
low back pain and radiation down lateral leg to sole of foot
of one week's duration.
VA records reflect that the veteran had a "back school"
evaluation in early June 2000, at which time she was reported
to be able to stand, sit, bend, lie down, lift and carry an
object, all without difficulty. General conditioning and
back stabilization were recommended. X-rays taken of the
veteran's lumbosacral spine in June 2000 revealed a normal
lumbar spine. Lumberization of the S1 vertebral body was
noted. It was noted that she had multiarticular pain
complaints, but no pathology by lab, EMG or imaging. She was
reassured and urged to resume a more physically active daily
routine and to "get rid" of all supports and braces. At
the time of one visit in June 2000, the veteran was initially
seen seated in a long sitting position, leaning against the
wall, stating that her back hurt if she sat up straight.
However, she was later observed sitting, "even leaning
forward" without difficulty, with the right [leg] fully
extended putting on the right ankle brace and shoe. An EMG
and nerve conduction studies were interpreted as normal,
without evidence of active or chronic neuropathic findings.
The testimony of the veteran before a Veterans Law Judge in
July 2000 was to the effect that the pain from her back
frequently radiated down into her legs and feet.
The veteran continued to be seen as a VA outpatient during
the remainder of 2000. In August she claimed numbness and
tingling radiating down the lower extremities, one episode of
urinary incontinence, and difficulty feeling the car pedals.
She reported used a cane and knee braces and felt that her
legs were not under her control after standing a long time.
Forward flexion was to 90 degrees; extension to 10 degrees,
and side movement to 10 degrees with pain when bending to the
right. There was paraspinal tenderness throughout the lumbar
spine. Straight leg raising was positive; but if the veteran
was distracted, straight leg raising was negative. It was
noted that she continued to have chronic low back pain, had
tried various forms of conservative treatment without
significant improvement, and that options for same had been
virtually exhausted. In September 2000 it was again noted
that testing continued to reveal no pathology and that the
veteran "must exercise more often for longer duration." A
report of electromyography conducted in January 2001 reflects
normal findings of the veteran's left lower extremity and
lumbar paraspinal muscles.
The veteran underwent a VA neurological evaluation in
September 2001. She complained that her back was stiff all
the time, more severe in the morning. Her legs ached and she
had reduced leg strength. She walked with a limp and stood
slowly from the seated position. Current medication was
Tylenol with codeine. Extension of the lumbar spine was to
20 degrees; forward flexion was to 30 degrees; lateral
bending was to 15 degrees right and to 20 degrees left; and
rotation, bilaterally, was to 20 degrees. The diagnosis was
that of degenerative disc disease of the lumbar spine. The
examiner noted that the veteran did not exhibit any evidence
that might represent manifestations of neuropathy at that
time.
The findings on examination were normal motor testing,
markedly reduced motion in the lumbar spine, and subjective
reports of diffused reduced sensation in the legs, not
consistent with radiculopathy. There was no evidence of easy
fatigability or incoordination related to the veteran's back
complaints. She was able to stand and walk without
significant restriction based on objective finding. The
examiner noted that the veteran would have difficulty with
repetitive bending, squatting, and stooping, and that she
should avoid this activity. The examiner stated that the
"objective findings are actually minimal considering the
chronic subjective complaints." It was noted that she did
not exhibit any evidence of manifestations of neuropathy,
since the discomfort reported in her legs was not consistent
with radiculopathy and sensory examination was not consistent
with that diagnosis.
The veteran underwent a VA orthopedic evaluation in September
2001. She reported daily low back pain, with "shocks"
going up and down her spine, and deterioration between L4 and
L5. The veteran also reported that the pain radiated down
into her legs and into her feet. The examiner noted that
such pain did not follow a radicular pattern. The veteran
was described as being "not a good historian," having
difficulty describing her symptoms. She was well developed
and nourished and in no acute distress. She had no
difficulty getting on or off the examining table; sat and
stood with normal posture; and had normal gait with no list.
She was able to walk on toes and heels without difficulty.
Upon examination, the range of motion of the veteran's back
was 90 degrees of flexion (with 95 degrees being normal); 10
degrees of extension (with 35 degrees being normal); 30
degrees of right and left lateral bending (with 40 degrees
being normal); and 20 degrees of right and left rotation
(with 35 degrees being normal). The veteran had difficulty
regaining the upright position from flexion, and complained
of mild right buttock pain on flexion and extension
throughout the range of motion. There was no weakness,
incoordination, fatigue, nor lack of endurance; nor was there
evidence of lumbar muscle spasm. Straight leg raising was to
90 degrees, bilaterally, from the sitting and supine
position. Sensory and motor testing of the lower extremities
appeared to be normal. Ankle jerks could not be obtained.
There was no limitation of motion of the lower extremities,
including due to pain, fatigue, weakness, lack of endurance
or incoordination.
X-rays revealed almost complete lumbarization of S1, and
partial lumbarization of S1-S2. There was general osteopenia
present. The diagnosis was that of osteoporosis of the
lumbar spine, with residual limitation of motion and mild
pain.
The examiner commented that the veteran demonstrated a loss
of extension motion of the lumbar spine, which was limited by
some pain. She would have functional limitations during
flare-ups due to her back pain, with activities such as
bending, prolonged sitting and standing. She was unable to
lift more than 20 pounds. The examiner stated that
[T]he veteran has little in the way of objective
manifestations to support her [ ] complaints.
She states that her pain is constant and
excruciating. She appears comfortable in the
office and moves about without apparent difficulty.
There is no objective finding of clinically
significant neuropathy into the lower extremities.
The only truly objective finding is the lack of
extension and the apparent radicular pain when
regaining the upright position. This usually
demonstrates some involvement in the posterior
vertebral complex and points to nerve root
irritation.
VA outpatient records compiled during 2001 and 2002 reflect
that an EMG of the left lower extremity and lumbar paraspinal
muscles, performed in January 2001 was essentially normal.
Other treatment during that period pertained to unrelated
disabilities, including muscle strain of the neck, shoulder
and rib areas after heavy lifting.
B. Legal Analysis
In general, disability evaluations are assigned by applying a
schedule of ratings (rating schedule) which represent, as far
as can practicably be determined, the average impairment of
earning capacity. 38 U.S.C.A. § 1155.
Although the regulations require that, in evaluating a given
disability, that disability be viewed in relation to its
whole recorded history, 38 C.F.R. § 4.41, where entitlement
to compensation has already been established, and an increase
in the disability rating is at issue, it is the present level
of disability which is of primary concern. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
More recently the Court has held that the above rule is not
applicable to the assignment of an initial rating for a
disability following an initial award of service connection
for that disability. At the time of an initial rating,
separate ratings can be assigned for separate periods of time
based on facts found, a practice known as "staged" ratings.
Fenderson v. West, 12 Vet. App. 119, 126 (1999).
Also, where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
In evaluating the veteran's claim for a higher initial
rating, the Board considers the evidence of record. The
medical findings are compared to the criteria set forth in
the VA's Schedule for Rating Disabilities. An evaluation of
the level of disability present must include consideration of
the functional impairment of the veteran's ability to engage
in ordinary activities, including employment, and the effect
of pain on the functional abilities. 38 C.F.R. §§ 4.10,
4.40, 4.45, 4.59.
Furthermore, the United States Court of Appeals for Veterans
Claims (Court) has held that the VA must consider the
applicability of regulations relating to pain. Quarles v.
Derwinski, 3 Vet. App. 129, 139 (1992); Schafrath v.
Derwinski, 1 Vet. App. 589, 593 (1993); Hatlestad v.
Derwinski, 1 Vet. App. 164, 167 (1991). "[F]unctional loss
due to pain is to be rated at the same level as the
functional loss when flexion is impeded." Schafrath, 1 Vet.
App. at 592.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. It is essential the examination on which ratings
are based adequately portray the anatomical damage, and the
functional loss, with respect to all these elements. The
functional loss may be due to absence of part, or all, of the
necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. A little used part of the musculoskeletal system
may be expected to show evidence of disuse, either through
atrophy, the condition of the skin, absence of normal
callosity or the like. 38 C.F.R. § 4.40.
As regard the joints, the factors of disability reside in
reductions of their normal excursion of movements in
different planes. Inquiry will be directed to these
considerations:
(a) Less movement than normal (due to ankylosis,
limitation or blocking, adhesions, tendon-tie-up,
contracted scars, etc.).
(b) More movement than normal (from flail joint,
resections, nonunion of fracture, relaxation of
ligaments, etc.).
(c) Weakened movement (due to muscle injury, disease or
injury of peripheral nerves, divided or lengthened
tendons, etc.).
(d) Excess fatigability.
(e) Incoordination, impaired ability to execute skilled
movements smoothly. (f) Pain on movement, swelling,
deformity or atrophy of disuse.
38 C.F.R. § 4.45 (2002). Instability of station, disturbance
of locomotion, interference with sitting, standing and
weight-bearing are related considerations.
A review of the record shows that service connection has been
granted for a back disability characterized by disc disease,
and that a 10 percent evaluation has been assigned under
Diagnostic Code 5010-5293.
Traumatic arthritis will be rated as degenerative arthritis.
38 C.F.R. § 4.71a, Diagnostic Code 5010.
Degenerative arthritis established by x-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003.
Slight limitation of motion of the lumbar segment of the
spine warrants a 10 percent evaluation. Moderate limitation
of motion of the lumbar segment of the spine warrants a 20
percent evaluation. A 40 percent evaluation requires severe
limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code
5292.
The Board first examines the evidence to see if the veteran
would be entitled to a rating higher than 10 percent under
Diagnostic Code 5292 based on limitation of motion. In this
case, the evidence shows that the range of motion obtained
has been very inconsistent during the course of the appeal
period. On most occasions only a minimal restriction was
found, with the veteran described as being able to stand,
sit, bend, lie down and lift, without difficulty (in June
2000) and as having little by way of objective findings to
support her subjective complaints. Some of the examination
and treatment reports suggest that she is exaggerating,
because of the examiners' observations of her activity and
movement in the examining room or the lack of findings to
account for her claims of pain. On the other hand, her
motion was recorded as being more than slightly restricted
during VA examination in September 1997, when forward flexion
was to only 40 degrees. (Even so, the examiner described
this as a minimal range of motion deficit.) During a
neurological examination, in September 2001, the veteran was
reported to have "markedly reduced motion" in the lumbar
spine, albeit she was able to stand and walk without
significant restriction. In fact, the VA neurologist who
recorded the markedly reduced range of motion referenced
above also stated that objective findings were "minimal."
However, the veteran has consistently reported complaints of
pain throughout the range of motion testing, as well as
functional impairment during flare-ups due to back pain.
38 C.F.R. §§ 4.40, 4.45, 4.59. In DeLuca, 8 Vet. App. 202,
the Court held that, in evaluating a service-connected
disability, the Board must consider functional loss due to
pain under 38 C.F.R. § 4.40 and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. § 4.45. And while the evidence
pertaining to such findings is also somewhat inconsistent,
with some examiners not finding functional loss due to such
factors, the Board finds that with resolution of any doubt in
the veteran's favor, and taking into account the DeLuca
factors, and the application of 38 C.F.R. § 4.7, the evidence
can be said to more nearly approximate the requirements for a
20 percent rating under Diagnostic Code 5292. Moreover, the
evidence shows that this level of impairment due to the
service-connected back disability has existed since the
effective date of the claim. Fenderson v. West, 12 Vet.
App. 119 (1999). Accordingly, a "staged" rating is not
indicated.
Next, the Board turns its attention to whether an higher
rating than 20 percent would be warranted under the
provisions of Diagnostic Code 5295.
A noncompensable rating is warranted for lumbosacral strain
where there are only slight subjective symptoms. A 10
percent evaluation requires characteristic pain on motion. A
20 percent rating is warranted for lumbosacral strain where
there is muscle spasm on extreme forward bending and
unilateral loss of lateral spine motion in a standing
position.
A 40 percent evaluation requires severe lumbosacral strain
manifested by listing of the whole spine to the opposite
side, a positive Goldthwait's sign, marked limitation of
forward bending in a standing position, loss of lateral
motion with osteoarthritic changes, or narrowing or
irregularity of the joint space. A 40 percent rating is also
warranted if only some of these manifestations are present if
there is also abnormal mobility on forced motion. 38 C.F.R. §
4.71a, Diagnostic Code 5295.
While the record is replete with instances where the veteran
has complained of pain on motion, there is no indication that
she has muscle spasms or loss of unilateral spine motion in a
standing position. Nor are any of the requirements for a 40
percent rating under this Code met.
The lumbar spine disorder may also be evaluated under the
provisions of Diagnostic Code 5293. A noncompensable
evaluation is warranted for intervertebral disc syndrome
which is cured by surgery. A 10 percent rating requires mild
intervertebral disc syndrome. A 20 percent evaluation is
warranted for moderate intervertebral disc syndrome with
recurring attacks. A 40 percent evaluation requires severe
intervertebral disc syndrome with recurring attacks with
intermittent relief. A 60 percent evaluation requires
pronounced intervertebral disc syndrome with persistent
symptoms compatible with sciatic neuropathy (i.e., with
characteristic pain and demonstrable muscle spasm and an
absent ankle jerk or other neurological findings appropriate
to the site of the diseased disc) and little intermittent
relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective
prior to September 23, 2002).
The regulations for evaluating intervertebral disc syndrome
were revised, effective on September 23, 2002. 67 Fed. Reg.
54345 (August 22, 2002). When regulations are changed during
the course of the veteran's appeal, the criteria that are to
the advantage of the veteran should be applied. Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
Under the revised regulations, intervertebral disc syndrome
is evaluated (preoperatively or postoperatively) either on
the total duration of incapacitating episodes over the past
12 months, or by combining under Sec. 4.25 separate
evaluations of its chronic orthopedic and neurologic
manifestations along with evaluations for all other
disabilities, whichever method results in the higher
evaluation.
Under Diagnostic Code 5293 (effective September 23, 2002), a
maximum 60 percent rating is warranted for incapacitating
episodes having a total duration of at least six weeks during
the past 12 months. A 40 percent evaluation requires
incapacitating episodes having a total duration of at least
four weeks, but less than six weeks, during the past 12
months. A 20 percent evaluation requires incapacitating
episodes having a total duration of at least two weeks, but
less than four weeks, during the past 12 months. A 10
percent evaluation requires incapacitating episodes having a
total duration of at least one week, but less than two weeks,
during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic
Code 5293 (effective September 23, 2002).
The notes following Diagnostic Code 5293 define an
incapacitating episode as a period of acute signs and
symptoms due to intervertebral disc syndrome that requires
bed rest prescribed by a physician and treatment by a
physician.
"Chronic orthopedic and neurologic manifestations" means
orthopedic and neurologic signs and symptoms resulting from
intervertebral disc syndrome that are present constantly, or
nearly so.
The notes following Diagnostic Code 5293 further provide
that, when evaluating on the basis of chronic manifestations,
evaluate orthopedic disabilities using evaluation criteria
for the most appropriate orthopedic diagnostic code or codes;
and evaluate neurologic disabilities separately using
evaluation criteria for the most appropriate neurologic
diagnostic code or codes.
Where intervertebral disc syndrome is present in more than
one spinal segment, and provided that the effects in each
spinal segment are clearly distinct, evaluate each segment on
the basis of chronic orthopedic and neurologic manifestations
or incapacitating episodes, whichever method results in a
higher evaluation for that segment.
The evidence does not indicate the presence of significant
neurological deficits, or other severe manifestations with
incapacitating episodes of sufficient duration to support the
assignment of a rating in excess of 20 percent under either
version of Diagnostic Code 5293.
With respect to the former version, which applies throughout
the entire rating period, there is clearly no evidence that
would support a finding of "moderate" intervertebral disc
pathology with recurrent attacks. The veteran's complaints
of neurological symptoms, such as radiating pain into the
extremities, "shocking" pain, and numbness have been
studied extensively, yet there are no objective findings to
account for such. Medical examinations, EMG, and nerve
studies failed to reveal pathology indicative of neurological
disease. It has been noted that her complaints are not
consistent with radiculopathy. There is no basis to assign a
higher rating under this Code.
Further, the evidence does not establish that application of
the revised version of Code 5293, applicable for the period
beginning September 23, 2002, would benefit the veteran by
permitting a higher rating. There is no suggestion in the
evidence that a physician has recommended bedrest; to the
contrary, the veteran has been advised to increase activity,
exercise and eliminate her reliance on supportive devices.
The most recent outpatient records, compiled in 2002, show
treatment for unrelated disorders, some attributed to heavy
lifting. Because the examination and treatment records do
not support a finding that the veteran has "chronic
neurologic manifestations" (defined as being present
constantly or nearly so), as opposed to subjective,
inconsistent complaints, a rating for combined orthopedic and
neurologic manifestations under Sec. 4.25 would not be in
order.
Nor is there evidence in the record that the veteran's
service-connected back disability presents exceptional or
unusual circumstances to warrant referral of the case to the
RO to consider the assignment of a rating on an
extraschedular basis. 38 C.F.R. § 3.321(b)(1).
ORDER
An initial rating of 20 percent is granted for the service-
connected back disability, subject to the regulations
applicable to the payment of monetary awards.
____________________________________________
N. R. ROBIN
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.